dissenting.
I respectfully dissent.
In two grounds of error, appellant contends that the trial court erred in failing to allow the jury to assess his punishment, and that the evidence is insufficient to support his conviction. I agree with the majority that the evidence is sufficient to support his conviction, but would hold that the trial court erred in denying appellant’s motion for the jury to assess punishment. Accordingly, I would reverse and remand for a new trial.
The trial record as approved by the trial court and filed in this court shows that the case was called for trial and tried on May 19, 1981. Appellant filed a motion, file marked the same day, requesting that the jury assess punishment. In denying the motion, the trial judge erred by stating that the motion was untimely because it was not filed the previous day when appellant entered his plea at arraignment. The law is clear that a motion for the jury to assess punishment is timely filed if filed in open court when the indictment is read to the jury. Toney v. State, 586 S.W.2d 856 (Tex.Crim.App.1979). The record shows that the indictment was read to the jury and appellant’s plea to it was entered on May 19, 1981.
In an effort to correct this error, the trial court held a hearing on December 11, 1981 to show that the appellant’s election to have the jury assess punishment was untimely because it was not filed until after both sides had rested their case. The majority opinion takes the position that Article 40.-09(7) of the Code of Criminal Procedure grants permission for the trial court, on its own motion or the motion of any party, to hold a hearing, after the record has been approved, to supplement the record so that it “speaks the truth.” I disagree with this position.
A careful reading of Article 40.09(7) reveals that its procedure to correct the record is one which may be utilized only before the trial court has certified the record to be correct. Furthermore, the Code of Criminal Procedure provides, in relevant part:
Upon the appellate record being filed in the court of appeals or the Court of Criminal Appeals, all further proceedings in the trial court, except as to bond as provided in Article 44.04, shall be suspended and arrested until the mandate of the appellate court is received by the trial court.
Tex.Code Crim.Pro.Ann. art. 44.11 (Vernon Supp.1982).
The record reflects that the trial court had approved the record on August 31, 1981, and that the transcript and statement of facts were filed in this court on September 14, 1981. Thus, the trial court clearly lacked jurisdiction to hold a hearing on December 11, 1981. See, Goodney v. State, 501 S.W.2d 311 (Tex.Cr.App.1973). Consequently, we cannot look to that hearing, but only to the record which is properly before us.
The record before us, therefore, shows that on May 19, the date on which the indictment was read to the jury, appellant entered his plea in open court and filed his election to have the jury assess punishment. Since appellant’s election was file marked May 19, 1981, we must presume that it was timely filed. McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975). The statement made by the trial court in denying appellant’s motion does not overcome this presumption because it shows only that the judge was acting under a mistaken view of the law, i.e., that the motion was untimely because it was not filed when appellant entered his plea at arraignment.
*554I agree with the majority that the evidence was sufficient to support the conviction.
For the reasons stated above, I would reverse and remand for a new trial.
STOREY and VANCE, JJ., concur in this dissent.